Board for Correction Case No. 020-82

Board for Correction Case No. 020-82

Xxxxxxx filed a written application dated xxxx 1982, with the Board requesting that his records be corrected to place him on terminal leave during the period xxx- xxx 1981, when he was shown to be Absent Without Leave (AWOL), and that his financial indebtedness to the Government be adjusted to reflect this change in his leave status. A hearing was not requested by Xxxxxxx. The merits of the request were reviewed on the basis of the documentation provided. The relevant facts and the Board's Findings, Conclusions and Recommendations are included as Attachment 1.

After consideration of all information provided, the Board recommended that Xxxxxxx separation date be set as of xxxxx 1981, thus corrections the AWOL status in his record that he be paid for his accrued annual leave totaling 26 days; and that the uncompleted portion of his special pay contract be paid to the Government based upon a separation date of Xxxxx 1981, which would amount to a debt of $2,275.00.

It is certified that the foregoing recommendations are true and complete statements of actions taken by the Board, as contained in Attachment 1 to this memorandum, and that the report of the actions of the Board has been reviewed by the Board's members. Further, it is certified that the documen­tation contained in Attachment 2 includes all information presented to the Board, and that it, in addition to applicable statutes, regulations and policies, has been considered by the Board in arriving at its recommenda­tions. Finally, it is certified that a quorum was present at the Board's meeting on xxxx 1983 when Xxxxxxx request was considered.

The foregoing action of the Board is submitted for your review and approval.

The issue of whether Xxxxxxx was on official terminal leave during the time when he was placed in AWOL status was essential for the Board to resolve. The Board members saw merit in Xxxxxxx contention that his terminal leave was official since it was approved by his supervisor and others in authority. xxxxxxx, xxxxxx, in a letter dated xxxxxx 1981 to xxxxxxx, Director, XXXX, admitted that he "was not clear" on the XXXX policy divesting an officer of terminal leave and other benefits upon early separation when he approved Xxxxxxx leave request. xxxxx was of the opinion that the XXXX policy governing loss of leave, when separating early under an RSP contract, distinguished between unused annual and terminal leave. The Board members were aware that in a letter dated xxxxxx 1981 to Xxxxxxx, XXXX stated, with reference to the persons who approved his leave, "the record indicates that these individuals inadvertently provided you with incorrect information." Further, XXXX stated, "even though you acted in good faith on improper advice, the courts have held many times that the Federal Government is not bound by misinformation provided by its employees." XXXX held the position that Xxxxxxx was AWOL from xxxx- xxxx 1981 because the leave ­granting authority had violated official leave policy in approving the leave request of an officer separating from active duty before completing his RSP contract.

The members of the Board also were aware that Xxxxxxx, an active duty officer, was assisted in processing his separation request, and was given advice and approvals by his immediate supervisor, and others in authority, in ways which could have caused him to believe they were acting in accor­dance with approved policy. The AWOL issue required the Board to define the right of an officer to an earned entitlement (in this case unused leave) when his right to this entitlement was placed in jeopardy by persons in authority who made decisions without full knowledge of official XXXX policy.

On the issue of a possible separation date, the Board considered several options. These were:

Make the effective date of the separation xxxx 1981, the day when Xxxxxxx left his duty station. Under this option, the Board would have to address the issue of whether to deny or pay Xxxxxxx for his accrued annual leave.

Make the effective date of the separation xxxx 1981, the date set by XXXX in its separation order. Under this option, Xxxxxxx could be placed on annual leave for 14 days. This option would require the Board to address the issue of whether to deny or pay Xxxxxxx a lump sum payment for the remaining 12-1/2 days of unused leave (including leave earned while in official leave status).

Make the effective date of the separation xxxx 1981, the end date when Xxxxxxx would have used up all leave. Under this option, the Board would not have to address the issue of whether to deny or pay Xxxxxxx a lump sum payment for his accrued leave.

With respect to Xxxxxxx indebtedness to the Government on the uncom­pleted portion of his RSP contract, information available to the Board indicated some variance in the amount due, depending upon when a separation date would be set. Xxxxxxx calculated that a payment of about $1,000 by him would cover the uncompleted portion of his RSP contract, excluding the time he was on leave. XXXX calculated the amount due on the RSP contract as high as $2,275 depending upon Xxxxxxx separation date. The members of the Board, XXXX and Xxxxxxx all were in agreement that the balance due to the Government on some portion of the RSP contract must be paid.

RECOMMENDATIONS

After consideration of all information presented, it is the recommendation of the Board that Xxxxxxx separation date be set as of xxx 1981, thus correcting the AWOL status in his record; that he be paid for his accrued annual leave totaling 26 days in the amount of $1,907.69; and that the uncompleted portion of his RSP contract be paid to the Government based upon a separation date of xxxx 1981, which would amount to a debt of $2,275.00.

I certify that each of the Board members has read this report and that its content is a true and complete statement of the deliberations of the Board.

Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.